Age Discrimination in Retirement: In Search of an Alternative

Adam Bruce Rowland

doi:10.1017/S0098858800013393

Age Discrimination in Retirement: In Search of an Alternative

Published online by Cambridge University Press: 29 April 2021

Adam Bruce Rowland

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Abstract

American employers have traditionally relied on age as the criterion for mandatory retirement. Yet advances in medicine indicate the inadequacy of age as a measure of job competence and suggest the potential for a more reliable measure. With current social and economic conditions pressing many employees to seek to work beyond mandatory retirement ages set by their employers, transition to more reliable measures has become a vital matter.

This Note explores the potential for implementing medically-based alternatives to the age proxy. It initially addresses problems of medical feasibility and economic practicality, and considers how the divergent interests of employees and employers can be accomodated. The balance of the Note examines the present roles of Congress, agencies, and courts in facilitating age-blind mandatory retirement policy. It suggests the need for reform of the federal Age Discrimination in Employment Act and recommends a more effective distribution of roles among governmental institutions.

Type: Notes and Comments
Information: American Journal of Law & Medicine , Volume 8 , Issue 4 , Winter 1983 , pp. 433 - 480

DOI: https://doi.org/10.1017/S0098858800013393 [Opens in a new window]
Copyright: Copyright © American Society of Law, Medicine and Ethics and Boston University 1983

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References

1 The “Fixed Period” Controversy—Prelude to Ageism (G. Grumman ed. 1979) (unpaginated introduction) thereinafter cited as Grumman].

2 Osier, The Fixed Period, reprinted in id. at 383. Dr. Osier drew the speech's title from the 1881 Anthony Trollope novel of the same name, which humorously proposed a scheme for retiring teachers at age 60 “for a year of contemplation before a peaceful departure by chloroform.” Id. at 382.

3 See Haber, , Mandatory Retirement in Nineteenth-century America: The Conceptual Basis for a New Work Cycle, 12 J. Soc. Hist. 77, 77 (1978)CrossRef Google Scholar.

4 It was reported as an “exotic but nonetheless alarming topic in 1905.” Grumman, supra note 1 (unpaginated introduction). Actually, proposals for age-based mandatory retirement predate Dr. Osier's speech. See, e.g., Beard, Legal Responsibility in Old Age: Based on Research into the Relation of Age and Work (1874), reprinted in id. On the continent, the policy already had been implemented by Germany's Chancellor Bismarck in 1889. House Select Comm. on Aging, Mandatory Retirement: The Social and Human Cost of Enforced Idleness, Comm. Pub. No. 91, 95th Cong., 1st Sess. 1 (1977) [hereinafter cited as Mandatory Retirement: The Social and Human Cost].

5 The economic and social conditions were peculiarly receptive to the policy during that period. See Haber, supra note 3; Cain, & Friedman, , Mandatory Retirement: The Law, the Courts, and the Broader Social Context, 11 Willamette L.J. 398, 398-400 (1975)Google Scholar; Special Task Force to the Secretary of Health, Education, and Welfare, Work in America 66-67 (1973). “In the 1950's, when many of the private pensions began for hourly rate employees, the age 65 was carried over from Social Security as the age for eligibility for benefits and, in many cases, for mandatory retirement.” Mandatory Retirement: The Social and Human Cost, supra note 4, at 71. See generally W. Graebner, A History of Retirement: The Meaning and Function of an American Institution (1980); King, & Steam, , Retirement Experience As a Policy Factor: An Applied History Approach, 14 J. Soc. Hist. 589 (1981)Google Scholar.

6 See generally Louis Harris & Associates, American Attitudes Toward Pensions and Retirement (1979) (1978 study), reprinted in American Attitudes Toward Pensions and Retirement, Hearings Before the House Select Comm. on Aging, 96th Cong., 1st Sess. (1979) [hereinafter cited as American Attitudes]. In congressional testimony, pollster Louis Harris concluded: “To put it bluntly, management is going to have to catch up with the thinking of employees and catch up fast or they are going to find themselves bucking the mainstream of American attitudes all the way upstream.” Id. at 11-12.

7 To be sure, other goals can be imagined. See Neugarten, , Age Distinctions and Their Social Functions, 57 Chi.-Kent L. Rev. 809, 823 (1981)Google Scholar. For example, an age-based retirement policy might be used to ameliorate our unemployment problems by confining each person's worklife to a fixed number of years so as to maximize the distribution of employment among a plethora of capable people. The legitimacy of age-based mandatory retirement would then depend on wholly different considerations. If this is a persuasive rationale for retaining age-based retirement, it is not the popular perception. Retirees are not heralded as patriots sacrificing their work so that others might work, but rather as over-the-hill incompetents incapable of continued work. So long as retirement reflects inability, our society should make a special effort to ensure that people are incapable of performing their job before they are retired mandatorily. That is the orientation adopted by this Note.

8 See infra Section IV A.

9 See generally Social Security, Hearings Before the Subcomm. on Monetary and Fiscal Policy of the Joint Economic Comm., 97th Cong., 1st Sess. (1981) (examining Social Security finance problems and proposals to avert threatened insolvency); Social Security Reform and Retirement Income Policy, Hearing Before the Senate Special Comm. on Aging, 97th Cong., 1st Sess. (1981). Today, the 3:1 ratio of paying workers to dependent retirees is producing enormous strain in the system, with forecasts of an intolerable 2:1 ratio in the future. Senate Special Comm. on Aging, Developments in Aging: 1980, 97th Cong., 1st Sess. 15 (1981) [hereinafter cited as Developments in Aging: 1980] (summarizing June 1980 OASDI Trustees’ Report).

10 Both a rise in longevity and a slump in the birth rate below that necessary for zero population growth have contributed to the phenomenal “graying of America.” See generally Brotman, Every Ninth American, in Developments in Aging: 1980, supra note 9. The population shift expectedly will approach crisis proportions in coming years when the late-1940s baby boom progresses into a senior boom. Id. See generally Robey, Age in America: 1980 Census Trends, 3 Am. Demographics 14 (July/August 1981).

11 Bringing older people back into the work force has been regarded as a well-advised step to relieve the economic hardship this country already experiences in supporting its older unemployed and retired citizens. See, e.g., Older Working Americans: A Productive Trend, Hearing Before the House Select Comm. on Aging, 97th Cong., 1st Sess. 3 (1981) [hereinafter cited as Older Working Americans] (statement of Rep. Claude Pepper) (“If the elderly people are not to become a burden upon the younger people they must be permitted and encouraged to work, and furthermore while they work, continue to contribute to social security, so they will be carrying their load.”); Senate Special Comm. on Aging, Emerging Options for Work and Retirement Policy (An Analysis of Major Income and Employment Issues with an Agenda for Research Priorities), 96th Cong., 2d Sess. 26 (1980) [hereinafter cited as Emerging Options] (paper prepared by the Urban Institute) (costs of an aging population could be offset by lengthening the traditional work life); Strategies to Encourage Older Workers to Voluntarily Extend Their Worklives, Hearings Before Subcomm. on Oversight of the Home Comm. on Ways and Means, 96th Cong., 2d Sess. (1980). See generally Retirement Policy in an Aging Society (R. Clarkeed. 1980); S. Rhine, America's Aging Population: Issues Facing Business and Society (1980); H. Sheppard & S. Rix, The Graying of Working America: The Coming Crisis in Retirement-Age Policy (1977).

Some economists venture that extending workforce participation of older Americans will result in an overall improvement in the country's economic position. See Older Working Americans, supra note 11, at 46 (statement of L. Olson) (summarizing Olson, Caton & Duffy, The Elderly and the Future Economy (1981)); Schulz, The Economics of Mandatory Retirement, 1 Indus. Gerontology, Winter 1974, at 1.

Other economists are concerned with the potential costs of altering the current retirement schedule. See generally H. Wallfesh, The Effects of Extending the Mandatory Retirement Age (1978); Horwich, Regulating Retirement—The Indirect Costs, Regulation, May/June 1978, at 27. Some of these worry that expanding employment opportunities for older Americans will merely take-from-Peter-to-give-to-Paul in a zero sum employment game. See U.S. Department of Labor, Abolishing Mandatory Retirement (Implications for America and Social Security of Eliminating Age Discrimination in Employment), Comm. Pub. No. 283, 97th Cong., 1st Sess. 175-211 (1981) [hereinafter cited as Abolishing Mandatory Retirement] (interim report printed by the House Select Comm. on Aging) (considering the veracity of such observations). The most frequent form of this zero sum argument is that abandoning age-based mandatory retirement will adversely affect the employability and upward mobility of young people. See id. at 137-73. Such an argument, however, is only dispositive of the retirement issue if employing a younger person is considered more important than employing an older person. See Howard, Mandatory Retirement, Traumatic Evidence of Age Discrimination, 13 Trial, Nov. 1977, at 46, 48 (“solution to unemployment for young workers … is not unemployment for older workers”); Cain & Friedman, supra note 5, at 403 (1975). It may be true that placing the younger person in the work force is good in terms of training, promotional programs, and a business's financial planning. On the other hand, the retirees are becoming more and more expensive wards for society. Senate Budget Comm., Work and Retirement: Options for Continued Employment of Older Workers, 97th Cong., 2d Sess. (1982) (paper prepared by Congressional Budget Office) (burden on government); Work After 65: Options for the 80's, Hearings Before the Senate Special Comm. on Aging, Cong., 2d Sess. 50 (1980) [hereinafter cited as Work After 65] (testimony of J. Rosow, Work in America, Inc.) (burden on employers). The statement also assumes that the older worker displaces the younger worker; it is not inconceivable that the economy could expand to accommodate both exceptional older workers and young workers. See Emerging Options, supra, at 29.

This Note will not discuss the macro-economic implications of restructuring retirement policy; it will only consider the relative costs of medically-based and age-based retirement decisions. See infra Section IV C.

12 See infra Section IV B.

13 29 U.S.C. §§ 621-634 (1976 & Supp. Ill 1979).

14 A 1978 Harris poll found that 63% of employees between 50 and 64 looked forward to retiring, but 33 % did not. American Attitudes, supra note 6, at 75. See generally Goudy, , Changes in Attitudes Toward Retirement: Evidence From a Panel of Older Males, 35 J. Gerontology 942 (1980)Google Scholar; J. O'meara, Retirement: Reward or Rejection (1978); J. Guildrium, The Myth of the Golden Years (1973); L. Cooley, The Retirement Trap (1965).

15 Work After 65, supra note 11, at 48 (statement of T. Woodruff, Executive Director of the Presidential Commission on Pension Policy). A 1979 poll sponsored in part by the Presidential Commission on Pension Policy found 63% of those surveyed expected that their retirement income would not be adequate for their eventual needs. Id. Likewise, a 1978 Harris poll found two in every three attribute any cut in quality of life upon retirement to financial problems; a critical minority of retirees (42%) said their standard of living was inadequate. American Attitudes, supra note 6, at 9 (statement of L. Harris). See also American Council of Life Insurance, Americans and Retirement: The Financial Crisis—A Report About A Survey Among 1000 Americans 2(1981), reprinted in Savings Incentives, Hearings Before the Subcomm. on Savings, Pensions, and Investment Policy of the Senate Comm. on Finance, 97th Cong., 1st Sess. 249 (1981) (almost half the work force feels they will be unable to afford to retire; 72% feel their savings for retirement are inadequate).

16 Retirement usually brings a one-half to two-thirds cut in income. See Brotman, supra note 10, at XV. According to 1978 statistics on those over 65, only 16% derived income from employment, 8% earning less than $2,505; 90% received median Social Security benefits of $2,998 for singles and $4,769 for heads of households; 13.9% (over three million) had incomes below the poverty line of $3,217. See Developments in Aging: 1980, supra note 9, at 7. See generally House Select Comm. on Aging, Retirement: The Broken Promise, Comm. Pub. No. 267, 96th Cong., 2d Sess. (1980).

Financial problems of retirees are exacerbated by inflation. Social Security benefits have been treated with an automatic cost-of-living adjustment since 1975, but the effectiveness of this device is diminished in periods of high inflation because the adjustments generally lag one year. Developments in Aging: 1980, supra note 9, at 8. Private pension plan payments, commercial annuities, and investments are rarely indexed to keep pace with inflation. Brotman, supra note 10, at XV. On public skepticism, see American Attitudes, supra note 6, at 14 (statement of L. Harris).

17 See supra note 9. Louis Harris notes that “a high 41 percent feel they have hardly any confidence that somebody is going to be paying that Social Security when they get ready to get it.” American Attitudes, supra note 6, at 15.

18 The Committee on Aging of the American Medical Association has stated:

Compulsory retirement on the basis of age will impair the health of many individuals whose job represents a major source of status, social status, creative satisfaction, social relationships or self-respect. It will be equally disastrous for the individual who works only because he has to, and who has a minimum of meaningful goals or interests in life, job-related or otherwise. Job separation may well deprive such a person of identification, and leave him foundering in a motivational vacuum with no frame of reference whatsoever…. There is ample evidence that physical and emotional problems can be precipitated or exacerbated by a denial of employment opportunities … .

Mandatory Retirement: The Social and Human Cost, supra note 4, at 22 (quoting AMA, Comm. on Aging, Retirement—A Medical Philosophy and Approach 1-3 (no date provided)). On physical detriment, see Haynes, McMichael & Tyroler, Survival After Voluntary and Involuntary Retirement 2, reprinted in Retirement Age Policies, Part 2, Hearings Before the House Select Comm. on Aging, 95th Cong., 1st Sess. 192, 193 (1977). Theoretical speculation about the psychological impact of retirement dates back at least to 1956:

The abrupt termination of one's active interests and occupation … can have disastrous personal effects. Unemployment aggravates existing neuroses and tends to reactivate dormant ones… . The retired worker … loses his familiar landmarks, his points of reference, and with them his sense of personal identity… . The experience of being all at once unnecessary and unwanted, with the deprivation of incentive and of an opportunity to continue one's accustomed work, may precipitate restlessness, weariness, and dejection that lead over into hypochondria, chronic fatigue states, or neurotic depression with resentment and self-depreciation.

Cameron, Neuroses of Later Maturity, in Mental Disorders in Later Life 201, 219 (2d ed. O. Kaplan, 1956) (footnotes omitted). But note that some have cautioned against generalizing, because retirement can increase life satisfaction as well. E.g., Note, Mandatory Retirement—A Vehicle for Age Discrimination, 51 Chi.-Kent L. Rev. 116, 122 (1974)Google Scholar. See also Stagner, , The Affluent Society Versus Early Retirement, 1 Aging & Work 25, 25 (1978)Google Scholar (citing a 1974 Harris poll reporting minimal life satisfaction differences between employed and retired persons over 65).

19 “There is only so much golf and fishing one can do, there is only so much socializing one can do… . That did not matter that much when people expected to die shortly after retiring.” How Old is “Old”?: The Effects of Aging on Learning and Working, Hearing Before the Senate Special Comm. on Aging, 96th Cong., 2d Sess. 19 (1980) [hereinafter cited as How OULis Old] (testimony of Dr. W. Schaie, Gerontology Research Institute, University of Southern California).

The increased number of retirement years is in part the product of earlier retirement. For instance, between 1950 and 1979 the percentage of male workers over 65 dropped from 39 to 20 percent; between ages 60 and 64, from 79 to 62 percent. Developments in Aging: 1980, supra note 9, at 15. See generally R. Clark & D. Barker, Reversing the Trend Toward Early Retirement (1981) (American Enterprise Institute publication).

The retirement period has also been lengthened by longer lifespans. Life expectancy in 1900 was 47.3 at birth; in 1978, 73.3 at birth. Although the lower life expectancy of 1900 is in part attributed to many early deaths, life expectancy at later ages increased significantly in the 1950s. In 1978, the average life expectancy for a person who reached age 65 was 16.3 years. This can be credited to the combined effects of diet and health care improvements in the last few decades. Brotman, supra note 10, at XXXI-XXXIII. See generally L Fingerhut, Changes in Mortality Among the Elderly: U.S. 1940-78 (1982) (National Center for Health Statistics, Vital and Health Statistics Series No. 22).

20 A 1978 study of 1500 respondents conducted by the Oregon Bureau of Labor found 90% favored flexible or voluntary retirement over mandatory retirement. Book Review, 3 Aging & Work 70, 70 (1980) (reviewing E. Weiss, The Best is Yet to be … ? (1978)). A 1977 poll by the Opinion Research Corp. found 7 out of 10 Americans oppose mandatory retirement. Work After 65, supra note 11, at 157. Notably, the enjoyment of retirement life depends on the predisposition of the retiree—whether the retiree prefers retirement to work, remains indifferent, or feels he or she is being forced to retire. See Note, supra note 18.

21 See generally Meier, Employment of Older Workers; Disincentives and Incentives, reprinted in Work After 65, supra note 11, at 127; Emerging Options, supra note 11; Rosenblum & Sheppard, Jobs for Older Workers in U.S. Industry: Possibilities and Prospects (1978), reviewed in 1 Aging & Work 272 (1978). In addition to providing employees some opportunity to choose when to retire, some employers have experimented with phase-out programs— allowing older employees to shift to part-time or less demanding jobs instead of retiring.

22 Pepper, Age Discrimination in Employment: A Growing Problem in America 7, 10 (1982) (citing Louis Harris & Associates 1981 study), in Inside Views of Corporate Age Discrimination, Hearing Before the House Select Comm. on Aging, 97th Cong., 2d Sess. 113, 116 (1982) [hereinafter cited as Inside Views of Corporate Age Discrimination]. Cf. American Attitudes, supra note 6, at 74 (1978 Harris study finds 88% agreement with same statement); Work After 65, supra note 11, at 157 (1974 Harris study finds 86% agreement with similar statement). While the polled statement shows considerable bias, Harris failed to muster a simple majority to favor age-based mandatory retirement with an oppositely biased statement; only 49% agreed that “Since many people are ready to retire at 65 [years] of age and it's hard to make exceptions for those who are not ready, it makes sense to have a fixed retirement age for every'one.” American Attitudes, supra note 6, at 74 (1978 Harris study). Evidently, respondents were not comfortable with the assumptions that many were ready to retire and that exceptions were hard to make.

23 Mandatory Retirement: The Social and Human Cost, supra note 4, at vii (foreword by Rep. C. Pepper, Chairman, House Select Comm. on Aging).

24 McDougal, , Lasswell, & Chen, , The Human Rights of the Aged: An Application of the General Norm of Nondiscrimination, 28 U. Fla. L. Rev. 639, 642 (1976)Google Scholar.

25 Stephens, The Aged Minority, in Minority Aged in America 59 (1971) (“[minority status does not imply numerical inferiority; rather the term refers to conditions of inequality and relative powerlessness within the context of major social institutions”). The aged have also been termed more guardedly a “quasi-minority.” Barron, , Minority Group Characteristics of the Aged in American Society, 8 Gerontology 477 (1953)Google Scholar.

26 The term “ageism” was conceived by Robert Butler, psychiatrist and past director of the National Institute on Aging. For a history of the “negative bias against the elderly” traced back to “about the end of the 18th Century,” see Grumman, supra note 1 (introduction). For the original usage, see R. Butler, Why Survive? Being Old in America 12 (1975); Butler, , Ageism: Another Form of Bigotry, 9 Gerontologist 243 (1969)Google Scholar.

27 If age-based decisions offend our notions of fairness, perhaps it is because age is a fixed and immutable trait. Such factors, unattractively beyond an individual's control, threaten and prevent individ uals from improving their chances. Schuck, , The Graying of Civil Rights Law: The Age Discrimination Act of 1975, 89 Yale L.J. 27, 33 (1979)Google Scholar (citing Underwood, Law and the Crystal Ball: Predicting Behavior with Statistical Inference and Individualized Judgment, 88 Yale L.J. 1408, 1436 (1979)). But immutability cannot be the real offense, because job competence itself is at some point beyond an individual's control; each person has some peak level of ability. The true offense is that age does not do well what it purports to do—it does not fairly substitute for job competence. The immutability of age exaggerates that unfairness because it denies individuals an opportunity to manipulate the criteria to better reflect their abilities. This characterization of unfairness is buttressed by scientific exposition of the unreliability of age proxies. Studies confirm the traditional assumption that old age brings with it a deterioration of certain abilities, but they also bear out the modern position that this deterioration occurs at markedly different rates for different people. Medical opinion today concurs that age is not a fair gauge of job competence. See infra section IV A.

28 See Work After 65, supra note 11, at 88-126 (discussion of some programs and their results); Rosenblum & Sheppard, supra note 21. See also New Business Perspectives on the Older Worker, Hearings Before the House Select Comm. on Aging, 97th Cong., 1st Sess. (1981); Business and the Graying of America, 4 Aging & Work 197, 199 (1981); Sonnenfeld, , Dealing With the Aging Workforce: Roundup of Research Findings on Older Workers Refutes Fears of Businessmen Who Link Age to Performance, 56 Harv. Bus. Rev. 81 (1978)Google Scholar; The Ax for Forced Retirement, Bus. Week, September 19, 1977, at 38-39 (steel industry voluntarily switches to yearly physical to replace age-based mandatory retirement for blue collar workers).

29 See Note, The Age Discrimination in Employment Act Amendments of 1978: A Legal and Economic Analysis, 7 Pepperdine L. Rev. 85, 98-101 (1979)Google Scholar; Reno, Incidence of Compulsory Retirement Policies (1976), reprinted in Sourcebook on Aging 273 (1977). On the prevalence of age discrimination in employment generally, see Inside Views of Corporate Age Discrimination, supra note 22.

30 See infra Sections IV B & IV C. See also J . Walker & H. Lazer, The End of Mandatory Retirement: Implications for Management (1978). They also might be responding to the costs of change itself or to a host of economic benefits provided through use of an age cutoff. See Horwich, supra note 11, at 29.

31 See generally Inside Views of Corporate Age Discrimination, supra note 22; Rosen & Jerdee, Too Old or Not Too Old, 55 Harv. BUS. Rev. 97 (Nov.-Dec. 1977) (reporting employer attitudes toward older employees).

32 29 U.S.C. §§ 621-634 (1976 & Supp. Ill 1979). The history leadingto the ADEA began when Congress considered forbidding age discrimination along with other forms in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000a (1976). In that Act, Congress called for a study by the Secretary of Labor concerning age discrimination. 42 U.S.C. § 2000e-14 (1976). The study, released in 1965, recommended “[a]ction to eliminate arbitrary age discrimination in employment,” finding “persistent and widespread use of age limits … that can be attributed only to arbitrary discrimination against older workers on the basis of age and regardless of ability.” Report of the Secretary of Labor to the Congress Under Section 715 of the Civil Rights Act of 1964, The Older American Worker—Age Discrimination in Employment 21 (1965). In the same year as that study was released, Congress enacted the Older Americans Act of 1965, Pub. L. No. 89-73, 79 Stat. 219 (codified at 42 U.S.C. §§ 3001-3056 (1976)), seeking to “assist our older people to secure equal opportunity … for employment with no discriminatory personnel practices because of age.” 42 U.S.C. § 3001 (1976). The Act lacked any enforcement mechanism and merely facilitated research on the scope of the problem. In the same year, President Johnson took steps to eliminate age discrimination in federal jobs. Exec. Order No. 11,141, 3 C.F.R. 179 (1964), reprinted in 5 U.S.C. § 3301 app., at 379 (1976). See generally C. Edelman & I. Siegler, Federal Age Discrimination in Employment Law: Slowing Down the Gold Watch 69-71 (1978). Johnson coupled this action with the introduction of legislation which finally led to the ADEA's passage in 1967. Pub. L. No. 90-202, 81 Stat. 602 (1967). The Act has been amended twice, once through the Fair Labor Standards Amendments of 1974, Pub. L. No. 93-259, § 28(a), 88 Stat. 74 (codified at 29 U.S.C. § 630(b) (1976)), and again through the ADEA Amendments of 1978, Pub. L. No. 95-256, 92 Stat. 189 (codified at 29 U.S.C. §§631, 633a (Supp. Ill 1979)). The ADEA has been the subject ofConsiderable commentary. See generally Bibliography, 32 Hastings L.J. 1400, 1403-08(1981) (citing commentary); O'Donnell, , Lasser, & Bailor, , The Federal Age Discrimination Statute: Bask Law, Areas of Controversy, and Suggestions for Compliance, 15 Wake Forest L. Rev. 1 (1979)Google Scholar; Note, The Age Discrimination in Employment Act of 1967, 90 Harv. L. Rev. 380(1976); Note, Age Discrimination in Employment, 50 N.Y.U. L. Rev. 924 (1975).

33 The ADEA has been joined more recently by the Age Discrimination Act of 1975, 42 U.S.C. §§6101-6107 (1976 & Supp. Ill 1979), which extends the nondiscrimination norm beyond employment practices. See generally Eglit, , The Age Discrimination Act of 1975, as Amended: Genesis and Selected Problem Areas, 57 Chi.-Kent L. Rev. 915 (1981)Google Scholar; Schuck, , Age Discrimination Revisited, 57 Chi.-Kent L. Rev. 1029 (1981)Google Scholar; Alexander, , Schucking Off the Rights of the Aged: Congressional Ambivalence and the Exceptions to the Age Discrimination Act of 1975, 57 Chi. -Kentl. Rev. 1009 (1981)Google Scholar; Schuck, supra note 27.

34 29 U.S.C. §621(b) (1976).

35 Pub. L. No. 90-202, 81 Stat. 602 (1967).

36 Pub. L. No. 93-259, 88 Stat. 74 (1974).

37 29 U.S.C. § 630(b) (1976). Questions regarding this provision's constitutionality were recently dismissed by the Supreme Court. EEOC v. Wyoming, 51 U.S.L.W. 4129 (U.S. March 2 198$). Accord Arritt v. Grisell, 567 F.2d 1267 (4th Cir. 1977); EEOC v. City of Minneapolis, 537 F. Supp. 750 (D. Minn.. 1982); EEOC v. Calumet County, 519 F. Supp. 195 (E.D. Wis. 1981). See generally Comment, Tenth Amendment Protects State Mandatory Retirement Policy Against Federal Age Discrimination in Employment Act, 60 WASH. U.L.Q. 687 (1982)Google Scholar, Note, Unconstitutionality of the Age Discrimination in Employment Act, 17 Tulsa L.J. 782 (1982).

38 29 U.S.C. § 630(b) (1976).

39 S. REP. N O. 493, 95th Cong., 1st Sess. 1 (1977). See generally Note, Age Discrimination in Employment Act Amendments of 1978: A Questionable Expansion, 27 Cath. U.L. Rev. 767 (1978)Google Scholar.

40 29 U.S.C. §631 (Supp. Ill 1979).

41 29 U.S.C. § 631(b) (Supp. Ill 1979). See infra note 55 (exceptions).

42 29 U.S.C. § 623(f)(2) (Supp. Ill 1979). See generally Note, Age Discrimination in Private Pension Plans, 9 SAN FERN. V.L. Rev. 67 (1981); Note, Age Discrimination in Employee Benefit Plans: Financial Dilemma for the Older Worker, 33 U. Fla. L . Rev. 368 (1981); Doppelt, & Takefman, , The Retirement-Plan Exemption in the Age Discrimination in Employment Act of 1967: Will the Exception Swallow the Rule?, 53 Chi.-Kent L. Rev. 597 (1977)Google Scholar; S. Rep. No. 493, 95th Cong., 1st Sess. 9 (1977) (citing study finding 41% of workers covered by private pension plans were subject to mandatory retirement).

43 See H.R. REP. NO. 950, 95th Cong., 2d Sess. 8 (1977), reprinted in 1978 U.S. Code Cong. & Ad. News 528, 529.

44 See generally EEOC Enforcement of the Age Discrimination in Employment Act, Hearings Before the House Select Comm. on Aging, 96th Cong., 2d Sess. (1980); Blackburn, , Charting Compliance Under the Age Discrimination in Employment Act, 57 Chi.-Kent L. Rev. 559, 569 (1981)Google Scholar; McKenry, , Enforcement of Age Discrimination in Employment Legislation, 32 Hastings L.J. 1157 (1981)Google Scholar.

45 See Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) (rejecting equal protection and due process arguments); Vance v. Bradley, 440 U.S. 93 (1979) (same). Lower courts have generally followed the the Supreme Court's lead. E.g., Martin v. Tamaki, 607 F.2d 307 (9th Cir. 1979) (upholding mandatory retirement of city employees at age 65). Two aberrant cases have held state laws to violate the equal protection clause. McMahon v. Barclay, 510 F. Supp. 1114 (S.D.N.Y. 1981) (state law that restricts hiring police officers over age 29); Gault v. Garrison, 569 F.2d 993 (7th Cir. 1977), cert, denied, 440 U.S. 945 (1979); but see Palmer v. Ticcione, 576 F.2d 459, 461 (2d Cir. 1978) (declining to follow Gault), cert, denied, 440 U.S. 945 (1979), and Trafalet v. Thompson, 594 F.2d 623 (7th Cir.), cert, denied, 444 U.S. 906 (1979). See generally Eglit, , Of Age and the Constitution, 57 Chi.-Kent L. Rev. 859 (1981)Google Scholar; Levine, , Comments on the Constitutional Law of Age Discrimination, 57 Chi.-Kent L. Rev. 1081 (1981)Google Scholar; Perry, , The Principles of Equal Protection, 32 Hastings L.J. 1133 (1981)Google Scholar (part of a symposium on age discrimination); Abramson, , Compulsory Retirement, the Constitution, and the Murgia Case, 42 Mo. L. Rev. 25 (1977)Google Scholar; Note, The Constitutional Challenge to Mandatory Retirement Statutes, 49 St. John's L. Rev. 748 (1975). Despite rather definitive holdings by the Supreme Court, some writers insist that age-based mandatory retirement is unconstitutional. E.g., Grizzard, , Mandatory Retirement and the Constitution: Challenging the Factual Basis Underlying Legislative Classifications, 10 Fla. ST. U.L. Rev. 1 (1982)Google Scholar; Drucker, & Moore, , Mandatory Retirement: Past, Present and Future of an Anachronism, 5 W. ST. U.L. Rev. 1, 13 (1977)Google Scholar (“the Court's view implicitly accepts stereotyped assumptions of aging and fails to appreciate the magnitude of age discrimination”); Note, Age Discrimination—Defeat of the Constitutional Challenge to Mandatory Retirement, 8 U. Tol. L. Rev. 764 (1977). Even if the equal protection clause were to encompass age discrimination, the fourteenth amendment only curtails governmental discrimination; it provides no protection against discrimination by private sector employers.

46 See Note, Age Discrimination in Employment: The Problem of the Worker Over Sixty-Jive, 5 Rut.-Cam. L.J. 484, 497 (1974) (reporting on state statutes with special attention to New Jersey); but see Winter, , ADEA: Eliminating the Upper Age limit, 4 Indus. Gerontology 130, 131 (1977)Google Scholar (in those states that have outlawed age-based mandatory retirement there has been little litigation because virtually all of these states have a “significant loophole” in their exemption for bona fide pension plans). On the operation of some state laws, see Note, Age Discrimination in Employment: A Comparison of the Federal and Washington State Statutory Requirements and Recent Developments, 16 Gonz. L. Rev. 637 (1981); Benanav, , Analysis of Federal and Minnesota Retirement Laws, 3 Aging & Work 40 (1980)Google Scholar; Canepa, & Reecer, , Age Discrimination in Employment: A Comparison of the Federal and State Laws and Remedies in New Mexico, 7 N.M.L. Rev. 51 (1977)Google Scholar. On the role of state laws apposite the federal ADEA, see Note, To Defer or Not to Defer: Role of States in Federal Age Discrimination Claims, 64 IOWA L Rev. 684 (1979); Note, Age Discrimination in Employment Act—Resort to State Remedies as a Prerequisite to Federal Action, 44 Mo. L. Rev. 319 (1979); Note, 1967 Age Discrimination in Employment Act and Preemption: A Case for Broader State Laws, 12 U.S.F.L. Rev. 283 (1978); Note, State Deferral of Complaints Under the Age Discrimination in Employment Act, 51 Notre Dame Law. 492 (1976).

47 29 U.S.C. § 631 (Supp. Ill 1979). The ADEA's lower age limit of 40, 29 U.S.C. § 631 (1976), has played a lesser role in retirement matters. Some controversy on the lower end has surrounded the mandatory retirement of airline stewardesses between the ages of 32 and 35. See Bergman, , Age Discrimination in Employment: Air Carriers, 36 J. Airl. & Com. 3, 11, 23 (1970)Google Scholar.

48 29 U.S.C. § 631(b) (Supp. Ill 1979). See U.S. Office of Personnel Management, an Interim Report on the Effects of the Age Discrimination in Employment Act Amendments of 1978 on the Federal Workforce (January 1981). For the occupational exceptions to the general rule, see infra note 55.

49 E.g., Cal. Assembly Bill, 568 Ch. 852, 586 Ch. 851 (1977).

50 Ex-Senator Javits once confided about the original age ceiling: “All we are dealing with is one of the shibboleths of our time. Someone said 65. They probably should never have said it.” Age Discrimination in Employment Amendments of 1977: Hearings on S. 1784 Before the Subcomm. on Labor of the Senate Comm. on Human Resources, 95th Cong., 1st Sess. 129 (1977). Cf. Drucker & Moore, supra note 45, at 7 (age ceiling establishes “statutory senility”). Some have attempted to raise the fairness issue to a constitutional level. See, e.g., Note, Age Discrimination in Employment: Correcting a Constitutionally Infirm Legislative Judgment, 47 S. Cal. L. Rev. 1311 (1974).

51 29 U.S.C. § 623(f)(1) (1976).

52 See infra Section V A.

53 Rosenblum, , Age Discrimination in Employment and the Permissibility of Occupational Age Restrictions, 32 Hastings L.J. 1261, 1269 (1981)Google Scholar. See infra note 200 (citing cases).

54 See, e.g., Beck v. Borough of Manheim, 505 F. Supp. 923 (E.D. Pa. 1981) (mandatory retirement of policeman at age 60 allowed).

55 The Act itself allows a “bona fide executive” or person in a “high policy making position” to be retired at 65 if retirement benefits from the employer exceed $27,000 annually. 29 U.S.C § 631(c) (Supp. III 1979). Until July 1, 1982, tenured professors could be retired at 65. 29 U.S.C. § 631(d) (Supp. III 1979). A separate statute requires retirement of law enforcement officers at age 55, air traffic controllers at age 56, and employees of the Alaska Railroad and U.S. citizen employees of the Panama Canal Company at age 62 with 15 years of service. 5 U.S.C. § 8335(b) (1976). Cf. Bowman v. United States Dep't of Justice, Fed. Prison Sys., 510 F. Supp. 1183 (E.D. Va. 1981) (upholding retirement of law enforcement officer). See also Thomas v. United States Postal Inspection Serv., 647 F.2d 1035 (10th Cir. 1981) (upholding statutorily imposed age 35 limit for hiring postal inspectors); Vance v. Bradley, 440 U.S. 93 (1979) (holding retirement of foreign service personnel at age 55 constitutional).

56 14 C.F.R. § 121.383(c) (1981). See infra Section V C.

57 See supra note 22 and accompanying text.

58 Forecasts of the demise of age-based mandatory retirement have been frequent. In 1977, one commentator noted: “Compulsory retirement is as good as dead. The only question now is how fast it will be abolished, and all signs point to its going much faster than anyone would have thought likely.” Drucker, Thinking About Retirement Policy, Wall St. J., Sept. 15, 1977, at 24. Cf. N.Y. Times, Feb. 13, 1982, at 50, col. 5 (“the political climate for the move [abandoning the ADEA's age ceiling] is regarded as generally favorable”). Yet in 1983 federal law still extends the nondiscrimination norm no further than the ADEA Amendments of 1978.

59 E.g., Retirement Age Policies, Part 2, Hearings Before the House Select Comm. on Aging, 95th Cong., 1st Sess. 92-95 (1977) (testimony of E. Marcus, chairperson, mandatory retirement comm., Chicago Gray Panthers). “[T]he aging-organizations have attained a level of power which far exceeds anything dreamed of by their more militant predecessors….” Miller, Book Review, 13 Trial, Nov. 1977, at 52, 56 (reviewing H. Platt, The Gray Lobby (1977)). Also see the summary of research by N. Cutler for the National Institute on Aging in an Appendix to Senate Special Comm. on Aging, Developments in Aging: 1979, Part 2, 96th Cong., 2d Sess., 180-81 (1980) (attributing the expansion of gray power to educational levels of the elderly, decline in partisanship of the general electorate, and increasing awareness of agerelated problems).

60 See, e.g., Senate Special Comm. on Aging, Developments in Aging : 1981, 97 th Cong., 2d Sess. (1982); Developments in Aging: 1980, supra note 9; Developments in Aging: 1979, 96th Cong., 2d Sess. (1980).

61 In 1981, H.R. 3397, and in 1980, H.R. 70 and three other similar bills attempted to eliminate the ADEA age ceiling entirely. See also Drucker & Moore, supra note 45, at 10 n.69 (recalling seven such bills introduced in the Ninety-Fifth Congress with 167 sponsors and cosponsors in the House). See generally Comment, Age Discrimination in Employment Act Amendments of 1978: Tension Between Congress and the Courts, 1980 B.Y.U. L. Rev. 569, 569 (1980) (discussing potential for future amendments to eliminate the ADEA upper age limit).

62 See infra notes 140-44 and accompanying text.

63 Several bills submitted in 1980 attempted to alter mandatory retirement practices outside the realm of the ADEA. H.R. 2694, 3730 (to eliminate mandatory retirement for the foreign service); H.R. 3201 and six other bills (to alter or eliminate the FAA's Age 60 Rule). None of these attempts succeeded. On the FAA's rule specifically, see infra notes 236-39 and accompanying text.

64 E.g., Amendments to the Age Discrimination in Employment Act of 1967: Hearing on H.R. 65 and H.R. 1115 Before the Subcomm. on Employment Opportunities of the House Comm. on Education and Labor, 95th Cong., 1st Sess. 245-52 (1977) (statement of O. Sherman, chairperson, labor-management comm., The Business Roundtable).

65 Congress justified retaining an age ceiling in 1978 because of the lack of research on workers over 70. S. REP. No. 493, 95th Cong., 1st Sess. 7(1977). At the same time, the removal of the age ceiling for federal workers was to provide information that would facilitate uncapping the Act. H.R. Rep. No. 527, 95th Cong., 1st Sess. 11-12 (1977). The original Act instructed the Secretary of Labor to “undertake research, and promote research, with a view to reducing barriers to the employment of older persons. … ” 29 U.S.C. § 622(a)(1) (1976). See also id. at § 624 (amended in 1978). The 1978 Amendments continued that mandate by requiring a study of the feasibility of eliminating or raising the age ceiling. 29 U.S.C. § 624 (Supp. III 1979). See Abolishing Mandatory Retirement, supra note 11 (an interim report of the study).

66 To date, only the general economics of encouraging later or earlier retirement have been seriously considered. See supra note 11. It was no accident that the original age ceiling coincided with the age at which many pension benefits began. See H.R. Rep. No. 527, 95th Cong., 1st Sess. 2 (1977). Similarly, holding the 1978 extension of the age ceiling to five more years can be attributed to fears of a traumatic impact on the workplace and an adverse effect on younger workers. Cf. Presidential Commission on Pension Policy, Coming of Age: Toward A National Retirement Income Policy (1981), reprinted in The Future of Retirement Programs in America, Hearing Before the Home Select Comm. on Aging, 97th Cong., 1st Sess. 94 (1981) (early indications are that fears are unwarranted). The narrow set of costs imposed by operating an alternative to age-based retirement have not been examined. See infra notes 119-22 and accompanying text.

67 See supra notes 47-50 and accompanying text.

68 See, e.g., 24 Fed. Reg. 5248 (1959) (contributing to the rationale of the Faa's Age 60 Rule).

69 “[T]here is no adult plateau period during which no aging decrements occur. Even 30-year-olds cannot perform as well as 20-year-olds… .” How Old is Old, supra note 19, at 5 (statement of R. Andres, M.D., Director, Baltimore Longitudinal Study).

70 In actuality, selections have been arbitrarily made. See Mandatory Retirement: The Social and Human Cost, supra note 4, at 1; supra note 50; infra note 217 and accompanying text. Longitudinal studies that have attempted to legitimize the age-selecting process have uniformly failed that quest. See generally How Old is Old, supra note 19. Studies have noted that there is a variation in level of competence among people at any given age and that this variation increases markedly with age:

It is difficult for us to come up with conclusions because one of the few truisms about aging is that the older you get, the larger the variance [regarding health] in the population… . [W]hile a lot of older persons are showing a lot of deficit, there are also a lot of others that are showing relatively little if any deficit.

Id. at 10 (Statement of C. Eisdorfer, M.D., Chairman, Department of Psychiatry and Behavioral Sciences, School of Medicine, University of Washington at Seattle). Attempts to minimize the variation by selecting subpopulations for common characteristics are inherently unproductive. A mammoth research project took 37 years to conclude that pilots are healthier and live longer than the general population. See Maclntyre, Mitchell, Oberman, Harlan, Graybiel & Johnson, Longevity in Military Pilots: 37 Year Followup of the Navy's “Woo Aviators,” 50 Aviation, Space & Envir. Med. 1120 (Sept., 1980). Yet a variation in health within the pilot population obviously remains. Since medical characteristics will ultimately form the soundest basis of commonality for the seleaion of a subpopulation, why not save the trouble of selecting subpopulations and simply rely directly on the medical characteristics of each individual? The obvious problem with seeking a magic age is that age provides a sloppy measure of job incompetence.

71 230 J. A.M.A. 1312 (1974) (American Medical Association, Committee on Aging), quoted in Drucker & Moore, supra note 45, at 5. Consider also the 1980 statement of the Director of the National Institute on Aging: “We know that chronological age is distinct from biological age, psychological age, intellectual age, and social age. Broadly speaking, the aging of different functions and capabilities occurs at different rates.” How Old is Old, supra note 19, at 3 (statement of R. Butler, M.D., Director, National Institute on Aging).

72 Despite all of the adverse commentary, some momentum to use age criteria persists. In the context of police, one commentator proposes: “The concept of adult development, described in cycles or stages, can no longer remain ignored by police policymakers. [Age] should take its place alongside other variables, such as education, sex, and height, which are being examined in an attempt to discover any significant correlations between certain personal characteristics and predictable job performances.” Morgan, , The Use of Age by Law Enforcement Policymakers as a Predictor of Performance, 8 J. Police Sci. & Ad. 166, 172 (1980)Google Scholar.

73 Using an age proxy also risks under-inclusiveness, because incompetent workers below the given age will escape retirement.

74 See, e.g., Age Discrimination Against Airline Pilots, Hearing Before the House Select Comm. on Aging, 96th Cong., 1st Sess. (1979) [hereinafter cited as Airline Pilots Hearing]. See generally Kovarsky, & Kovarsky, , Economic, Medical and Legal Aspects of the Age Discrimination Laws in Employment, 27 Vand. L. Rev. 839 (1974)Google Scholar.

75 Airline Pilots Hearing, supra note 74, at 42 (statement of Dr. S. Mohler).

76 Id. at 45 (statement of Mr. Q. Taylor, FAA Deputy Administrator).

77 See supra note 28.

78 As for jobs circumscribed by the ADEA's age 70 ceiling, one commentator concludes:

[T]he Act has only institutionalized [the age ceiling] as the accepted age for retirement. Further it has allowed the employer to view age per se, if an individual is over [the age ceiling], as a bona fide occupational requirement. An employer will find difficulty in recognizing his own obligation when Congress has not recognized that the worker over [the age ceiling] is in need of protection.

Note, supra note 46, 5 Rut.-Cam. L. Rev. at 497.

79 A Senator has noted with concern: “I can imagine the equivalent of OSHA … laws [with] massive books of guidelines of exactly how you address jobsite safety, and I could imagine almost—and I do not say this with great welcome in my heart—a similar heavyhanded approach to regulating employment of older workers.” Work after 65, supra note 15, at 57 (comments of Sen. Heinz). On the other hand, care must be taken not to exclude the critical variable for a certain individual simply because it is uncommon. See How Old is Old, supra note 19, at 23 (testimony of Dr. W. Schaie, Director, Gerontology Research Institute, University of Southern California).

80 “[Y]ou don't do a ritualistic examination of several common factors. If one is working with a mining community you check his lungs. If you are working with a pilot, you check his vision and his intelligence and stability. It has to be particularized for the individual.” How Old is Old, supra note 19, at 17 (testimony of Dr. Koyl).

81 Gulhemp was popularized in this country by the National Council on Aging, Inc. in connection with a five-year demonstration project in Portland, Maine. The system was devised by Dr. Koyl, a medical consultant for De Haviland Aircraft Co. in Canada. See generally L. Koyl, Employing the Older Worker: Matching the Employee to the Job (1974); Special Retirement Policies for Law Enforcement Officers and Firefighters, Hearing before the Subcomm. on Compensation and Employee Benefits of the House Comm. on Post Office and Civil Service, 95th Cong., 1st Sess. at 169-85 (1977) [hereinafter cited as Special Retirement Policies] (description of Gulhemp by J. Ossofsky, Executive Director, National Council on Aging, Inc.); Batten, , Application of a Unique Industrial Health System, 19 Indus. Gerontology 38 (1973)Google Scholar; Youey, Gulhemp: What Workers Can Do, Manpower (June 1975), reprinted in Special Retirement Policies, supra, at 174-78; Causey, The Federal Diary, The Washington Post, Sept. 12, 1977, reprinted in Special Retirement Policies, supra, at 178.

82 See Special Retirement Policies, supra note 81, at 168-85. See also How Old is Old, supra note 19, at 25-28 (statement of Dr. Koyl).

83 For a detailed explanation of the program, see Koyl, supra note 81.

84 Id. at 32.

85 Id. at 28.

86 Id.

87 See id. at 40-44.

88 See id. at vi-vii (extracted from table of contents).

89 See id. at 58-61.

90 See id. at 35-36, 110. Prognostic grading predicts health at some future time.

91 For the implications of such incapacitation, see infra notes 93 & 95 and accompanying text. The matter is complicated in these jobs because medical testing usually is routine for employees below the retirement age, purportedly to select out incompetents. Cf. Criswell v. Western Air Lines, Inc., 514 F. Supp. 384, 390 (Cd. Cal. 1981) (noting the consideration).

92 See Report of the National Institute on Aging Panel on the Experienced Pilots Study 4 (1981) [hereinafter cited as NIA Report].

93 See id. at 10; Institute of Medicine of the National Academy of Sciences, Airline Pilot Age, Health and Performance: Scientific and Medical Considerations 153 [hereinafter cited as IOM Report], reprinted in NIA Report, App. F.

94 This has been termed a prognostic grading system. See Koyl, supra note 81, at 35-36, 110. Much of the BFOQ and Age 60 Rule debate has centered on the feasibility of measuring these risks.

95 See NIA Report, supra note 92, at 10; IOM Report, supra note 93, at 25-26, 156.

96 For example, intellectual ability seems to have little to do with age. “General intellectual decline in old age is largely a myth.” Baltes & Schaie, Aging and I.Q.: The Myth of the Twilight Years, Psychology Today, March 1974, at 35. If there is some correlation, it may not be meaningful:

There are large individual differences in intellectual capacity, cognitive performance and personality among persons 65 years of age and older. Substantial variations in the biological-experiential demands of occupational tasks also exist. It is therefore difficult to subscribe to the view that a fixed age exists at which performance in all occupations falls below “expected” standards of achievement.

Braugher, , Is the Older Worker Inherently Incompetent?, 1 Aging & Work 243, 249 (1978)Google Scholar. Additionally, age brings some benefits such as experience to the workplace that should be balanced against the degenerative aspects of aging. Consider this in light of the previously discussed relativity principle. See supra text accompanying notes 79-80.

97 See infra notes 212-16 and accompanying text.

98 See infra notes 227-30 and accompanying text.

99 Pub. L. No. 96-171, 93 Stat. 1285 (1979). The NIH assigned the task of preparing the study to the National Institute on Aging (NIA), which in turn awarded a contract for the major work to the Institute of Medicine (IOM) of the National Academy of Sciences. The NIA study was released in 1981. NIA Report, supra note 92. The IOM Report was completed earlier. IOM Report, supra note 93.

100 See Pilot Aging Study, Hearing Before the Subcomm. on Investigations and Oversight of the House Comm. on Science and Technology, 96th Cong., 2d Sess. 15 (1980) (statement of Rep. C. Pepper).

101 NIA Report, supra note 92, at 22.

102 Id. at 1. Cf. id. at 7 (“even the more comprehensive examinations cannot yet provide quantitative assessment of intellectual functions or reliable prediction, in individuals, of the likelihood of incapacitating cardiovascular disease” (emphasis in original)).

103 Id. at 10, 14. The authors—a study panel of medical experts—concluded that the “age 60 rule appears indefensible on medical grounds” and that “age 60 represents no medical ‘breakpoint’.” Id. at 4.

104 Id. at 22.

105 Id. at 1.

106 Id. at 22-25. That approach, designed to gather data toward systemwide change, would include a voluntary waiver program where some pilots would be allowed to continue flying beyond age 60 after careful medical screening. The study suggests that the medical screening would ensure that public safety is not compromised.

107 Id. at 7.

108 See infra section V B.

109 “[N]o test will be able to separate a population of individuals—regardless of their age—into two distinct categories of people; that is, a competent group and an incompetent group. One will have to deal with borderline or gray zones regardless of the tests… . [T]hey will have to be arbitrarily chosen.” How Old is Old, supra note 19, at 7 (statement of Dr. Andres).

110 Medical variables reflect more clearly the quality of performance. While some arbitrariness is unavoidable, medical variables will thus ensure that employees are treated more equitably among themselves by criteria more suited to measuring their job performance.

111 Work After 65, supra note 11, at 112 (statement of H. Page, Polaroid Corp.). Cf. O'Donnell, supra note 32, at 3 (“mediocrity [could become] legally preferred over ability in the same way … that strict seniority and academic tenure programs already operate”).

112 It has been noted that periodic testing for just older people “can be used as a discriminatory tool in much the same way as age has been used… .” How Old is Old, supra note 19, at 47 (comment of Dr. Arenberg). The potential for discrimination is heightened because medical testing allows some control of results by the physician. Underwood, supra note 27, at 1443 (an “important objection to subjectively scored factors … is the opportunity they provide for the decisionmaker to cloak his personal biases in the mantle of a scientific judgment”). To an extent, the ADEA regulations governing job competence testing are already sensitive to the problem. See 29 C.F.R. § 860.104(b) (1981) (identifying reasonable factors other than age). Cf. Griggs v. Duke Power Co., 401 U.S. 424 (1971) (reviewing same problem in race context).

113 Botwinick, J., Aging and Behavior 64 (1973)Google Scholar. See also Note, supra note 29, at 101 (“The concept of mandatory retirement saves face for the employee who would otherwise be forced out of work. Workers under mandatory retirement programs are retired with, dignity, rather than being fired or compelled to accept a lower paying job.”); Schuck, supra note 27, at 33-34. But see Howard, supra note 11, at 48 (responding that “[t]here is now a stigma attached simply to turning 65. Is it fair to shield a relatively small group of workers by stigmatizing every older worker?”). Some have cautioned that the testing might be so invasive of an employee's integrity as to pose ethical problems: “It is scientifically and ethically impossible to duplicate for testing purposes a high stress situation, such as an encounter with an armed suspect, that police officers may experience in the field.” EEOC v. City of Minneapolis, 537 F. Supp. 750, 755 (D. Minn. 1982) (emphasis added) (dicta).

114 For the purposes of this Note, practicality is confined to the operative costs of a medically-based retirement program. Cf. supra note 11 (discussing societal costs).

115 Age “is perhaps the classic example of the ‘formally realizable rule’—a criterion of decision whose applicability is readily ascertainable by the investigation of relatively unambiguous, objective facts.” Schuck, supra note 27, at 32 n.22 (citing Kennedy, , Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685, 1687-1701 (1976)Google Scholar).

116 See supra note 115.

117 Kennedy, supra note 115, at 1689.

118 Sec Schuck, supra note 27, at 34-35.

119 See Mandatory Retirement: The Social and Human Cost, supra note 4, at 25-32.

120 But see NIA Report, supra note 92, at 4 (noting inter alia that certain medical testing “would add considerably to the cost of medical surveillance”).

121 After suggesting that practicality be considered, the leading BFOQ case of Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir. 1976), noted that “impractical does not mean an employer can simply allege added expense to fulfill his burden,” id. at 235 n.26, 236. See also Johnson v. Mayor & City Council of Baltimore, 515 F. Supp. 1287, 1299 (D. Md. 1981) (“In most cases, the cost of … testing is not great… . [M]ore expensive and more invasive testing mechanisms need be employed only … where it is indicated that follow-up testing is required.”); Criswell v. Western Air Lines, Inc., 514 F. Supp. 384, 397 (Cd. Cal. 1981); Smallwood v. United Air Lines, Inc., 661 F.2d 303, 307 (4th Cir. 1981), cert. denied, 102 S. Ct. 2299 (1982); EEOC v. County of Los Angeles, 531 F. Supp. 122, 124 (Cd. Cal. 1982).

122 E.g., Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir. 1976). Cf. Note, supra note 32, 90 Harv. L. Rev. at 407-09 (courts should pay more attention to cost in BFOQ cases).

123 Cf. L. Tribe, American Constitutional LaW 1002 (1978) (noting judicial rejection of defenses based on efficiency, convenience or cost-saving in constitutional discrimination cases).

124 Note, The Cost of Growing Old: Business Necessity and the Age Discrimination in Employment Act, 88 Yale L.J. 565, 565 n.4 (1979).

125 Work After 65, supra note 11, at 2-3 (opening statement of Sen. Chiles, Chairman, Senate Special Comm. on Aging).

126 Cf. Stigler, Economists and Public Policy, Regulation, May/June 1982, at 13, 16 (economists fail to take into account that the political process does not share the economist's preoccupation with efficiency).

127 “[i]f age is not used, the cost may become too great to society in terms of the time and money needed to make more refined measurements and decisions about individuals.” Birren, & Loucks, , Age Related Change and the Individual, 57 Chi.-Kent L. Rev. 833, 849-50 (1981)Google Scholar. Cf Schuck, supra note 27, at 75-76 (parallel quandary over the implication of costs for the Age Discrimination Act of 1975).

128 Attempts to constitutionalize a rule against irrebuttable presumptions have been consigned to a shelf of academic literature after brief acknowledgment by the Warren Court. See generally Note, The Irrebuttable Presumption Doctrine in the Supreme Court, 87 Harv. L. Rev. 1534 (1974). Weinberger v. Sain, 422 U.S. 749 (1975); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 657 (1974) (Rehnquist, J., dissenting); Vlandis v. Kline, 412 U.S. 441 (1973); Palmer v. Ticcione, 576 F.2d 459 (2d Cir. 1978); Johnson v. Lefkowitz, 566 F.2d 866 (2d Cir. 1977), cert, denied sub nom. Johnson v. Abrams, 440 U.S. 945, reh'g denied, 441 U.S. 956 (1979); McDonald v. Board of Comm'rs of Pilots of the State of N.Y., 523 F. Supp. 949 (S.D.N.Y. 1981). However, this does not mean that rebuttable presumptions are bad policy. Consider the following model: “[A]ny state policeman who has attained age 60 shall be retired forthwith; provided, that any state policeman who attains age 60 may be continued in the state service from year to year on application of said employee, approved by the personnel board, if evidence of physical or mental fitness to carry out his duties is furnished.” Ala. Code § 36-27- 16(a)(1)(e) (1975), construed in Adams v. James, 526 F. Supp. 80, 85 (M.D. Ala. 1981).

129 Differential testing of those under the retirement age and those over the retirement age might “be used as a discriminatory tool in much the same way as age has been used… . If only people over age 55, for example, are required to demonstrate their competence on the job, then that is discriminatory… .” How Old is Old, supra note 19, at 47 (comment of Dr. Arenberg). In the same fashion, if those below age 55 get one set of medical tests and those over age 55 a set of stricter tests, that too may be discriminatory. See infra note 130.

130 The choices are: (1) apply one comprehensive test to everyone; (2) apply successive and more rigorous tests as competence diminishes, see Johnson v. Mayor & City Council of Baltimore, 515 F. Supp. 1287, 1299 (D. Md. 1981); or (3) argue that retaining some incompetent workers under the presumptive retirement age is a legitimate tradeoff for retaining competent workers over the presumptive retirement age. One of the BFOQ pilot cases Criswell v. Western Air Lines, Inc., 514 F. Supp. 384, 397 (Cd. Cal. 1981), cites an Opinion Letter from the Wage and Hour Administrator, 2 [CCH] Empl. Prac. Guide ¶ 5114 (Oct. 30, 1978), to the effect that the ADEA prohibits'a more stringent medical exam for older employees. But the court observed that this was an “ironic” position and directed the airline company to establish the necessary medical exams for older pilots. 514 F. Supp. at 397. But cf. Older Working Americans, supra note 9, at 26-27 (comments of Rep. Vento) (expressing concern for the discriminatory appearance of testing workers differentially based on their age).

131 See Cassell, The Increasing Complexity of Retirement'Decisions: A Tradition of Longstanding is Undergoing Change as Workers Opt Out Early or Extend the Normal Worklife, 27 Mich. St. U. Bus. Topics 15 (Winter 1979) (reporting the difficulties that attend flexible retirement patterns).

132 See supra note 113 and accompanying text.

133 The loss of accessibility is regrettable. Where the system may accurately measure the individual's job competence and predict his incompetence, the individual will be unable to predict his “legal incompetence” in preparing for retirement. He will instead have to rely on test results he might not trust. “In establishing the legitimacy of a selection system, an appeal to scientific authority may have contradictory effects: it suggests decision by experts who have unchecked power to manipulate their system. A prediction based on unexplained correlations requires the applicant simply to trust the technical experts who designed the system.” Kennedy, , Legal Formality, 2 J. Leg. Stud. 351 (1973)Google Scholar.

134 In this way one facet of covert discrimination can be avoided; another facet may still persist. See supra note 112 and accompanying text.

135 The administrative mechanism might be either (1) government fiat, see, e.g., 14 C.F.R. §§ 61.23, 67.13 (FAA pilot certification regulations); (2) an employer/union model of negotiation, see, e.g., Criswell v. Western Air Lines, Inc., 514 F. Supp 384, 397 (Cd. Cal. 1981) (directing negotiation between Western Air lines and the Air line Pilots Association); or (3) employer discretion subject to limited agency or judicial review.

136 On the BFOQ defense generally, see Comment, A New Interpretation of the BFOQ Exception Under the ADEA: A Remedy for the Exception That Swallowed the Rule, 31 Am. U.L. Rev. 391 (1982); Note, Scope of the Bona Fide Occupational Qualification Exemption Under the Age Discrimination in Employment Act, 57 Chi.-Kent L. Rev. 1145 (1981); Comment, Age Discrimination in Employment—the Bona Fide Occupational Qualification Defense—Balancing the Interests of the Older Worker in Acquiring “and Continuing Employment Against the Interest in Public Safety, 24 Wayne L. Rev. 1339 (1978); Player, , Defenses Under the Age Discrimination in Employment Act: Misinterpretation, Misdirection, and the 1978 Amendments, 12 Ga. L. Rev. 747 (1978)Google Scholar; James, & Alaimo, , BFOQ: An Exception Becoming the Rule, 26 Clev. St. L. Rev. 1 (1977)Google Scholar; Note, Employment Discrimination—Age Discrimination in Employment Act of 1967—Bona Fide Occupational Qualification, 16 B.C. Ind. & Com. L. Rev. 688 (1975). See also Department ADEA Police and Firefighters Task Force, Department of Labor Position Paper (Jan. 27, 1978), reprinted in EEOC Enforcement of the Age Discrimination in Employment Act, Hearing Before the House Select Comm. on Aging, 96th Cong., 2d Sess. (1980) [hereinafter cited as Dol Position Paper]; Final Interpretations: Age Discrimination in Employment Act, 46 Fed. Reg. 47,724, 47,727 (1981) (codified at 29 C.F.R. § 1625.6 (1981)) [hereinafter cited as Final Interpretations].

137 E.g., Hodgson v. Greyhound Lines, Inc., 499 F.2d 859 (7th Cir. 1974) (busdrivers), cert, denied sub nom. Brennan v. Greyhound Lines, Inc., 419 U.S. 1122 (1975). The defense also allows employers to select certain actors and promoters on the basis of age. 29 C.F.R. § 860.102 (1981).

138 See, e.g., Beck v. Borough of Manheim, 505 F. Supp. 923 (E.D. Pa. 1981) (mandatory retirement of policeman at age 60 is BFOQ).

139 See supra Section IV B.

140 29 U.S.C. § 623(f)(1) (1976).

141 42 U.S.C. 2000e to 2000e-17 (1976 & Supp. III 1979). Title VII covers religion, sex, national origin, and race; the BFOQ exception, 42 U.S.C. 2000e-2(e)(1) (1976), applies to all of these except race. See Note, supra note 136, 24 Wayne L. Rev. at 1344-61; McKenry, supra note 44, at 1166-68; Note, supra note 32, 90 Harv. L. Rev. at 411 (suggesting BFOQ clauses in each Act should be interpreted differently). But see Mohasco Corp. v. Silver, 447 U.S. 807, 823 n.42 (1980); Oscar Mayer & Co. v. Evans, 441 U.S. 750, 755 (1979).

142 In passing the 1978 amendments, Congress gave some attention to the problematic exception, but adopted no formal refinements. See infra note 144.

143 33 Fed. Reg. 9172 (1968), 29 C.F.R. § 860.102(b): “It is anticipated that this concept of a bona fide occupational qualification will have limited scope and application. Further, as this is an exception it must be construed narrowly… .” The Department would apply the BFOQ exception only where employment practices were “clearly imposed for the safety and convenience of the public,” citing as example the FAA's longstanding Age 60 Rule. 29 C.F.R. § 860.102(d) (1981). While not authoritative, interpretations are suggestive to courts. See, e.g., Udall v. Tallman, 380 U.S. 1, 16 (1965).

144 In reports accompanying the 1978 amendments, Congress amplified its understanding of the BFOQ exception: “It is recognized that certain mental and physical capacities may decline with age, and in some jobs with unusually high demands, age may be considered… . For example, jobs such as some of those in air traffic control and law enforcement and firefighting have very strict physical requirements on which public safety depends.” H.R. Rep. No. 527,95th Cong., 2d Sess. 12 (1978). See also S. Rep. No. 493,95th Cong., 2d Sess., reprinted in 1978 U.S. Code Cong. & Ad. News 504, 513-14. But this simply repeated what courts had already stated. See Schickman, The Strengths and Weaknesses of the McDonnell Douglas Formula in Jury Actions Under the ADEA, 32 Hastings L.J. 1239, 1254 n.71 (1981). In 1981, the EEOC revised BFOQ interpretations in considerable detail. Final Interpretations, supra note 136. Even though the revised interpretation is more detailed, it may be accorded little weight because it is made long after the Act's passage. No case has yet dealt with the new interpretations. Cf. Comment, supra note 136, 31 Am. U.L. Rev. at 430 (impact as yet unclear).

145 “Bona fide” could be read in its crudest form to require merely “good faith,” i.e., no invidious intent. In ADEA BFOQ adjudications, only one court has referred to good faith: “the state legislature was not deliberately discriminating against older workers …but was acting on a good faith belief that public safety required early retirement of all protective service employees.” EEOC v. Janesville, 630 F.2d 1254, 1258-59 (7th Cir. 1980) (emphasis added). But motive-based analysis has not gained acceptance. See infra text accompanying notes 162-65 (discussing the accepted test). Cf. Note, Developments in the Law—Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv. L. Rev. 1109, 1177-79 (1971) (Title VII parallel).

146 499 F.2d 859 (7th Cir. 1974), cert, denied sub nom. Brennan v. Greyhound Lines, Inc., 419 U.S. 1122 (1975).

147 “Due to such compelling concerns for safety, it is not necessary that Greyhound show that all or substantially all bus driver applicants over forty could not perform safely.” Id. at 863.

148 Id. The court required the defendant to show only “a minimal increase in harm for it is enough to show that elimination of the hiring policy might jeopardize the life of one more person than might otherwise occur under the present hiring practice.” Id. Greyhound succeeded on evidence of the “rigors” of the job, of the “degenerative … changes … brought on by the aging process,” and of “an optimum blend of age and experience” pursued by the employer. Id. at 863, 865. Though not emphasized by the court, the “optimum blend” explanation is interesting. It distinguishes hiring and retirement cases. Since the useful life of an employee is unpredictable and experience is closely associated with safety, Greyhound has an interest in maximizing safety through maximizing the aggregate years of experience among its busdrivers. This interest might be justifiably transformed into a policy of hiring young applicants. The argument would not apply in retirement cases.

149 Id. at 865.

150 442 F.2d 385 (5th Cir.), cert. denied, 404 U.S. 950 (1971).

151 Id. at 388.

152 Id. (emphasis in original).

153 This point is widely acknowledged. See, e.g., Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224, 235 n.27 (5th Cir. 1976); Comment, supra note 136, at 1349 n.72; Kovarski & Kovarski, supra note 72, at 897-901; Note, supra note 136, 16 B.C. Indus. & Com. L. Rev. at 688.

154 Contra Greyhound, 499 F.2d at 861 (concluding any heavier burden would be inappropriate in the context of safety).

155 531 F.2d 224 (5th Cir. 1976).

156 Id. at 227 n.2 (age 40 cutoff).

157 29 U.S.C. § 4(f)(1) (1976), construed in Tamiami, 531 F.2d at 235-36.

158 Id. at 236.

159 Thus, Tamiami applied Diaz to limit the availability of BFOQ defenses to jobs where the compelling interest of public safety was at stake without allowing the degree of risk to public safety alone to dictate the outcome. Id. at 235 n.27. Accord Maclennan v. American Airlines, Inc., 440 F. Supp. 466, 472 (E.D. Va. 1977) (“incantation of a safety rationale” should not be an “abracadabra” signal for court deference; in Title VII context).

160 531 F.2d at 236.

161 Id.

162 408 F.2d 228 (5th Cir. 1969).

163 Id. at 230.

164 Id. at 235. The court identified a ‘“stereotyped characterization’ that few or no women can safely lift 30 pounds, while all men are treated as if they can.” Id. at 235-36.

165 Id. at 235 n.5.

166 531 F.2d at 228 n.8, 235.

167 Id.

168 See Tuohy v. Ford Motor Co., 675 F.2d 842, 845 (6th Cir. 1982); EEOC v. County of Santa Barbara, 666 F.2d 373, 376 (9th Cir. 1982); Arritt v. Grisell, 567 F.2d 1267, 1271 (4th Cir. 1977); Houghton v. McDonnell Douglas Corp., 553 F.2d 561, 564 (8th Cir.), cert. denied, 434 U.S. 966 (1977); Campbell v. Connelie, 542 F. Supp. 275,278-79 (N.D.N.Y. 1982).

169 See Note, supra note 32, 90 Harv. L. Rev. at 407; Tuohy v. Ford Motor Co., 490 F. Supp. 258, 263 (E.D. Mich. 1980), rev'd and remanded, 675 F.2d 842 (6th Cir. 1982). See also Arritt v. Grisell, 567 F.2d 1267, 1271 n.14 (4th Cir. 1977).

170 See supra section IV A.

171 Arguably, a strong version of the “all or substantially all” test could obviate this concern. Fixing the threshold of substantially all at a high percentage—say, 95%—would affect very few workers adversely. Yet fixing that threshold would probably require a congressional directive. Quantifying burdens is not a usual or recommended function of courts. Further, fixing a threshold would underhandedly incorporate a notion of practicality. It would cast an age of irrebuttable incompetence on the theory that the expense of testing employees beyond the threshold age outweighs any unfairness to those very few over the age who are competent. If such economic decisionmaking is an impermissible intrusion on the nondiscriminatory norm, then only proof that all workers (100%) are incapable of performing the required work would qualify as a valid application of the “all or substantially all” test.

172 See infra text accompanying notes 182-84.

173 Dol Position Paper, supra note 136.

174 Id. at 95-96.

175 In 1979, ADEA enforcement activity was shifted from the Department of Labor to the EEOC pursuant to Reorganization Plan No. 1 of 1978. 3 C.F.R. § 321, reprinted in 5 U.S.C. app., at 354 (Supp. III 1979). See McKenry, supra note 44 (discussing implications of shift).

176 Final Interpretations, supra note 136, 46 Fed. Reg. at 47,727, 29 C.F.R. § 1625.6. There is some ambiguity as to the EEOC's meaning because it also ratified the Tamiami formulation: “[The employer] has the burden of proving that (1) the age limit is reasonably necessary to the essence of the business, and either (2) that all or substantially all individuals excluded from the job involved are in fact disqualified, or (3) that some of the individuals so excluded possess a disqualifying trait that cannot be ascertained except by reference to age.” Id. (emphasis added). The sentence quoted in the text follows after and presumably clarifies this formulation. See generally Comment, supra note 136, 31 Am. U.L. Rev. at 425-430.

177 In Tamiami, the employer offered no evidence to satisfy the “all or substantially all” test, 531 F.2d at 236, probably because the test did not make sense in the context of hiring.

178 See supra note 144. See also Comment, supra note 136, 31 Am. U.L. Rev. at 428.

179 Criswell v. Western Air Lines, Inc., 514 F. Supp. 384, 389 (CD. Cal. 1981).

180 Aaron v. Davis, 414 F. Supp. 453 (E.D. Ark. 1976), rejected a BFOQ defense for an ordinance retiring Aaron, an assistant fire chief, at 62. The court noted that “nothing in the record” indicated that Aaron was “in any way unable to continue to fully and capably discharge [his] duties,” id. at 456-57, that the evidence stood “uncontradicted,” id. at 459, and that the court “credits these views in the absence of any evidence to the contrary.” Id. The court found that even though “scientific and medical research and studies currently under way … may provide empirical data showing, statistically at least, the inability of a large percentage of [the post-62] age group to adequately perform [their] duties,” id. at 463, the employer had failed to show that “even a substantial number” of persons were so indisposed. Id. at 462. A subsidiary question raised by Aaron is whether such empirical findings need be established ex ante the retirement policy or simply be demonstrable during a later suit. Aaron suggests a preference for the former, noting that the retirement policy “arose out of collective bargaining and political agreements. [It was not] preceded by, or based upon, actual studies or empirical data indicating the relevance of age 62 to … occupational requirements.” Id. at 460. Other courts have not considered the actual empirical data used, but have been satisfied to survey expert opinion ex post. They perhaps acknowledge that the real issue is not what was done but what could have been done by the employer to rationalize its retirement policy.

181 666 F.2d 373, 376-77 (9th Cir. 1982). See also Campbell v. Connelie, 542 F. Supp. 275, 279 (N.D.N.Y. 1982).

182 The problem is apparent in Johnson v. Mayor & City Council of Baltimore, 515 F. Supp. 1287 (D. Md. 1981). That court essentially limited its inquiry to workers between 60 and 65, because if the questioned age 60 retirement policy for firefighters were held invalid, they would be mandatorily retired under a general city employee policy at age 65. Id. at 1296, 1296 n.9, 1298. The court interestingly notes: “After age seventy, deterioration in physical performance is more rapid. This fact has little significance in this case.” Id at 1298 n. 19. It could be, however, of significance in the next case challenging the general age 65 retirement policy.

183 See, e.g., id. at 1300 (“as an employee's age increases, there is a decrease in the quantum of proof necessary for an employer to meet its burden”) (citing Aaron v. Davis, 414 F. Supp. at 461).

184 Tuohy v. Ford Motor Co., 490 F. Supp. 258, 262-63, (E.D. Mich. 1980), rev'd and remanded, 675 F.2d 842 (6th Cir. 1982) (relying in part on the FAA's Age 60 Rule to allow mandatory retirement at 60 of a pilot not covered by the rule); Hoefelman v. Conservation Comm'n, 541 F. Supp. 272, 274 (W.D. Miss. 1982) (similarly relying on Age 60 Rule). Another court properly retorted that “[w]ith respect to pilots, it is somewhat of an irony that the FAA does not apply its Age 60 Rule to its own pilots who fly that agency's fleet… . The U.S. Navy … has recently rescinded its age limitation policy for pilots.” Criswell v. Western Air lines, Inc., 514 F. Supp. 384, 390 n.9 (Cd. Cal. 1981) (rejecting inter alia an analogy to Age 60 Rule in holding age 60 is not BFOQ in the context of flight-deck crew members). See also Gathercole v. Global Assoc's., 545 F. Supp. 1280 (N.D. Cal. 1982) (rejecting reliance on Age 60 Rule); EEOC v. County of Los Angeles, 526 F. Supp. 1135 (Cd. Cal. 1981) (rejecting an analogy to other federal laws respecting hiring age ceiling). Another case compared the impressionistic success of older mandatory retirement ages used in other cities to maintain safe and efficient fire departments in rejecting a BFOQ defense for mandatory retirement of firefighters at 55 and 60 in Baltimore. Johnson v. Mayor & City Council of Baltimore, 515 F. Supp. 1287, 1297 (D. Md. 1981).

185 553 F.2d 561 (8th Cir.), cert. denied, 434 U.S. 966 (1977). See generally Note, Houghton v. McDonnell Douglas Corporation: Age Discrimination and Test Pilots, 23 St. Louis U.L.J. 187 (1979); Schickman, supra note 144.

186 553 F.2d at 564.

187 Houghton v. McDonnell Douglas Corp., No. 76-1652 (8th Cir., June 1, 1977) (order amending opinion submitted April 20, 1977). See Houghton v. McDonnell Douglas Corp., 627 F.2d 858, 860 n.6 & 866 n.12 (1980).

188 The protracted history of Houghton's case proceeds as follows: (1) Brennan v. McDonnell Douglas Corp., 519 F.2d 718 (8th Cir. 1975) (authorizing intervention of the Department of Labor on behalf of Houghton over lower court's denial); (2) Houghton v. McDonnell Douglas Corp., 413 F. Supp. 1230 (E.D. Mo. 1976) (denying relief on the merits), rev'd and remanded, 553 F.2d 561 (8th Cir.), cert. denied, 434 U.S. 966 (1977); (3) Houghton v. McDonnell Douglas Corp., 474 F. Supp. 193 (E.D. Mo. 1979), rev'd and remanded, 627 F.2d 858 (8th Cir. 1980) (district court failed to follow instructions on prior remand).

189 553 F.2d at 565.

190 627 F.2d at 866 n.13

191 Formally, courts place the burden of proof on the employer once the employee establishes his prima facie case of discrimination. Tamiami, 531 F.2d at 227; Houghton, 553 F.2d at 564. Some courts have been careful to enunciate that the ultimate burden of persuasion remains with the employee. Criswell, 514 F. Supp. at 390 n.8 (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)). Regardless, rebuttal by the employee's expert witnesses has played a significant role because of the almost exclusive use of expert opinion in meeting the employer's burden of proof. In short, bearing the burden has been displaced by a battle of the experts.

192 When the 1978 ADEA Amendments granted complainants a right to jury trial, 29 U.S.C. § 626(c) (Supp. III 1979), the procedural change was bound to have a substantive impact. See Howard, ADEA Update, 4 Aging & Work 122, 124 (1981). L. Janofsky, expresident of the American Bar Association, noted in a 1979 speech: “[J]urors tend to be older people. Often they are retired people who, unlike many others, have time to serve on a jury… . [Of significance also is] the normal juror's prejudice against large corporations, and the bias in favor of an employee “with many years of faithful service… . ” Developments in Aging: 1979, supra note 60, at 42 (quoting janofsky speech). On the right to jury trial, see Gitt, , 1978 Amendments to the Age Discrimination in Employment Act—A Legal Overview, 64 Marq. L. Rev. 607, 622 (1981)Google Scholar; Note, Right to Jury Trial Under the Age Discrimination in Employment Act, 43 Mo. L. Rev. 250 (1978); Note, Right to Jury Trial Under the Age Discrimination in Employment and Fair Labor Standards Acts, 44 U. Chi. L. Rev. 365 (1977).

193 Houghton's experience in the courts evidences this problem. See supra notes 185-90 and accompanying text.

194 Beck v. Borough of Manheim, 505 F. Supp. 923, 927 (E.D. Pa. 1981).

195 “Plaintiff Robey was actively engaged in fighting a major fire between 12:00 midnight and 7:00 A.M. on April 24, 1981, which was only three days before this case came on for trial.” Johnson v. Mayor & City Council of Baltimore, 515 F. Supp. 1287, 1297 n. 11 (D. Md. 1981). See also id. at 1297 (“[i]n a three alarm fire … [plaintiff] Grove performed arduous firefighting duties over a period of four hours without difficulty”).

196 Aaron v. Davis, 414 F. Supp. at 462 (requirements of the job differ both “in kind and degree”).

197 See, e.g., id. at 462 (distinguishing Greyhound).

198 Although some cases purport to reconcile themselves with predecessors, these discussions appear to be inserted as afterthoughts.

199 For example, Johnson v. Mayor & City Council of Baltimore, 515 F. Supp. 1287 (D. Md. 1981) (firefighters retired at 60, invalid BFOQ) distinguishes EEOC v. City of St. Paul, 671 F.2d 1162, 1145-46 (8th Cir. 1982) (firefighters retired at 65, valid BFOQ) because of t he different ages involved. Johnson, 515 F. Supp. at 1300.

200 Each occupation offers different concerns. Regarding firemen, see Aaron v. Davis, 414 F. Supp. 453 (E.D. Ark. 1976) (assistant fire chief retirement at 62 not BFOQ); Johnson v. Mayor & City Council of Baltimore, 515 F. Supp. 1287 (D. Md. 1981) (firefighter retirement at 60 not BFOQ); and EEOC v. City of St. Paul, 671 F.2d 1162, 1145-46 (8th Cir. 1982) (firefighter retirement at 65 valid BFOQ). Regarding policemen, see Arritt v. Grisell, 567 F.2d 1267 (4th Cir. 1977); EEOC v. Janesville, 630 F.2d 1254 (7th Cir. 1980); EEOC v. City of Minneapolis, 537 F. Supp. 750 (D. Minn. 1982) (police captain retirement at 65 not BFOQ); Beck v. Borough of Manheim, 505 F. Supp. 923 (E.D. Pa. 1981) (police retirement at.60 is valid BFOQ). Regarding pilots, see Houghton v. McDonnell Douglas Corp., 553 F.2d 561 (8th Cir.) (test pilot retirement at 52 not BFOQ), cert, denied, 434 U.S. 966 (1977); Smallwood v. United Air Lines, Inc., 661 F.2d 303, 307 (4th Cir. 1981), cert. denied, 102 S. Ct. 2299(1982); Tuohy v. Ford Motor Co., 675 F.2d 842 (6th Cir. 1982); Criswell v. Western Air lines, Inc., 514 F. Supp 384, 390 (Cd. Cal. 1981). Regarding busdrivers, see Hodgson v. Greyhound Lines, Inc., 499 F.2d 859 (7th Cir. 1974) (busdriver hiring ceiling of 35 is valid BFOQ), cert. denied, 419 U.S. 1122 (1975); Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir. 1976) (busdriver hiring ceiling of 40 is valid BFOQ).

201 See EEOC v. City of St. Paul, 671 F.2d 1162, 1165-66 (8th Cir. 1982); Criswell v. Western Air lines, Inc., 514 F. Supp 384, 390 (CD. Cal. 1981); see also Aaron v. Davis, 414 F. Supp. 453 (E.D. Ark. 1976); but see EEOC v. City of Janesville, 630 F.2d 1254 (7th Cir. 1980).

202 See, e.g., Beck v. Borough of Manheim, 505 F. Supp. 923, 926-27 (E.D. Pa. 1981) (small police department).

203 EEOC v. City of St. Paul, 671 F.2d 1162, 1165, 1167 (8th Cir. 1982). See also EEOC v. City of St. Paul, 500 F. Supp. 1135, 1146 & n.5 (D. Minn. 1980) (lower court decision); Aaron v. Davis, 414 F. Supp. at 457 (“duties and responsibilities of those in higher ranks differ materially from those of lower eschelon personnel”).

204 Criswell v. Western Air lines, Inc., 514 F. Supp 384, 390 (CD. Cal. 1981). On the other hand, the Seventh Circuit has refused to tolerate a segmentation of police chiefs from the generic class of police officers. EEOC v. City of Janesville, 630 F.2d 1254 (7th Cir. 1980). Janesville questioned the propriety of recategorizing the generic class used by the employer, noting that the district court wrongly “ascribed to the [statutory] term ‘particular business’ a meaning synonomous with the term ‘particular occupation’” in construing legislative intent. Id. at 1258. For some doubts on Janesville's propriety, see EEOC v. City of St. Paul, 671 F.2d 1162, 1167 (8th Cir. 1982); Rosenblum, supra note 53, at 1270-71.See generally Note, EEOC v. City of Janesville: Promoting Age Discrimination—the Exception Becomes the Rule, 14 J. Mar. L. Rev. 895 (1981).

205 Criswell, 514 F. Supp. at 390 (“[even if] flight engineer were to become incapacitated in flight, the crew redundancy concept employed by Western and other carriers provides for other members of the flight deck crew to perform the necessary procedures of the flight engineer until the aircraft can be landed”); Aaron v. Davis, 414 F. Supp. at 462 (firemen are engaged in a “joint effort”).

206 Beck, 505 F. Supp. at 926 (mandatory retirement of police officer at age 60 is BFOQ, in part because disability of one officer would have “serious, adverse consequences to the personal welfare of fellow officers, community residents and property” in t he context of small police department); EEOC v. City of St. Paul, 500 F. Supp. at 1144 (“failure of… [f]irefighter to safely and efficiently perform his duties at the fire scene would endanger other firefighters”).

207 Relief is limited to reinstatement and damages. See 29 U.S.C. §§ 626(b), 216 (1976 & Supp. III 1979). See generally Note, Relief Under the Age Discrimination in Employment Act of 1967, 31 Baylor L. Rev. 217 (1979).

208 See, e.g., A. Bickel, The Supreme Court and the Idea of Progress 175 (1970) (courts not suited for complex tasks). But see Chayes, , The Role of the Judge in Public Litigation, 89 Harv. L. Rev. 1281, 1308 (1976)Google Scholar (courts uniquely suited for complex tasks).

209 Judge Brown announced this recommendation in a special concurrence to his own main opinion. 531 F.2d at 239. He sought “the expert input of the agency charged directly with responsibility by Congress.” Id. at 248. See Note, supra note 136, 24 Wayne L. Rev. at 1361-64.

210 531 F.2d at 239, 248. See also Tuohy v. Ford Motor Co., 490 F. Supp. 258, 264 (E.D. Mich. 1980) (“jury should not be permitted to speculate on the sufficiency of the medical evidence as to the reasonable necessity of the defendant's employment rule”), rev'd and remanded, 675 F.2d 842 (6th Cir. 1982).

211 Tuohy v. Ford Motor Co., 490 F. Supp. 258, 265 (E.D. Mich. 1980), rev'd and remanded, 675 F.2d 842 (6th Cir. 1982).

212 A half year following the notice of proposed rule making, 24 Fed. Reg. 5249 (June 27, 1959), the rule was promulgated. 24 Fed. Reg. 9772 (December 5, 1959) (codified at 14 C.F.R. § 121.383(c) (1980)).

213 14 C.F.R. § 121.383(c) (1980).

214 Federal Aviation Act o f 1958, 4 9 U.S.C. § 1421(a) (1976).

215 “Because of the relatively recent development of large-scale air carrier operations, and the emphasis on youth in the original selection of pilots by air carriers, the matter of age of the pilot, and its effect on the skills of piloting, has not until now become of critical importance. … By 1962, it is predicted that there will be at least 80 active airline transport pilots in that age group, and that by 1967 the number will be about 250.” 24 Fed. Reg. 9772 (1959).

216 Id. at 5248.

217 Id. at 5249.

218 Id. at 9772.

219 “While medical science may at some time develop accurate, validly selective tests which would safely allow selected pilots to fly in air carrier operations after age 60, safety cannot be compromised in the meantime for lack of such tests.” Id.

220 The lineage of cases began with Air Line Pilots Ass'n Int'l v. Quesada, 276 F.2d 892 (2d Cir. 1960), in which the court gracefully bowed out of the debate: “It is not the business of the courts to substitute their judgment for the expert knowledge of those who a re given authority to implement the general directives of Congress.” Id. at 898. See also Chew v. Quesada, 182 F. Supp. 231 (D.D.C. 1960); O'Donnell v. Shaffer, 491 F.2d 59 (D.C. Cir. 1974). Following the Houghton BFOQ case, discussed supra text accompanying note 185, a spray of cases attempted to invalidate the FAA's “no-exemption” policy. The analogy to Houghton was unilaterally dismissed. Keating v. FAA, 610 F.2d 611 (9th Cir. 1980); Rombough v. FAA, 594 F.2d 893 (2d Cir. 1979); Gray v. FAA, 594 F.2d 793 (10th Cir. 1979); Starr v. FAA, 589 F.2d 307 (7th Cir. 1978). Although these courts deferred to the FAA, one court delivered a few words of warning: “[A]t some point, the state of medical art may become so compellingly supportive of a capacity to determine functional age equivalents in individual cases that it would be an abuse of discretion not to grant an exemption.” Gray, 594 F.2d at 795.

221 See, e.g., Comment, Mandatory Retirement of Airline Pilots: An Analysis of the FAA's Age 60 Retirement Rule, 33 Hastings L.J. 241 (1981); Bergman, , Age Discrimination in Employment: Air Carriers, 36 J. Air L. & Com. 3 (1970)Google Scholar; Ruppenthal, , Cumpulsory Retirement of Air Line Pilots, 14 Indus. & Lab. Rel. Rev. 528 (1961)Google Scholar; Airline Pilots Hearing, supra note 74; To Eliminate Age Limitations Presently Imposed on Certain Pilots of Aircraft: Hearings on H.R. 3948 Before the Subcomm. on Aviation of the House Comm. on Public Works and Transportation, 96th Cong., 1st Sess. (1979) [hereinafter cited as Hearings on H.R. 3948]; Economics of Aging: Toward a Full Share of Abundance, Part 9: Employment Aspects, Hearings Before the Subcomm. on Employment and Retirement Incomes of the Senate Special Comm. on Aging, 91st Cong., 1st Sess. (1969) [hereinafter cited as Toward a Full Share of Abundance].

222 Ex-Administrator N. Halaby optimistically announced the study in 1962: “When these criteria are established, the agency will be able to tailor a retirement standard for each pilot instead of requiring all to retire at the age of 60… . [E]very man ages in a different way and at a different rate.” N.Y. Times, March 11, 1962, at 88, col. 1. See also Halaby, FAA Develops Unique Studies to Determine “True Age,” Air Line Pilot (Feb. 1962).

223 Airline Pilots Hearing, supra note 74, at 44. See generally Comm. on Government Operations, Better Management Needed of Medical Research on Aging, H.R. Rep. No. 2080 (1966) (harshly critical of FAA). The effort's unproductive collapse might be better understood in light of the then FAA Administrator's later admission that the study was designed merely to appease “scrap-the-rule pressure” from interest groups by giving the appearance of “trying.” See Administrator Halaby's autobiography, Crosswinds, An Airman's Memoir 113 (1978).

224 In addition to avoiding these obvious administrative headaches, discussed supra section IV C, the FAA also avoided political headaches. As a cheap rule, the Age 60 Rule had the favor of a powerful airline lobby. The rule also relieved the FAA of the difficulties of defending a policy that allowed gray hairs in the cockpit and of explaining the first crash invulving an older pilot.

225 See generally Airline Pilots Hearing, supra note 74.

226 To get a feel for the tensions, see Sarasohn, , Pilots, Airlines Clash on Retirement Age, 37 Cong. Q.W. Rep. 1957 (1979)Google Scholar.

227 The major pilot union, the Air Line Pilots Association (ALPA), has drifted from its original staunch opposition to the Age 60 Rule. After continued failure to effect change, the ALPA switched its efforts to negotiating stronger retirement packages for its members. A smaller pilot group, the Pilots Rights Association, has picked up where the ALPA has left off. See NIA Report, supra note 92, at app.

228 See Toward a Full Share of Abundance, supra note 221, at 1369 (ALPA “Chronological History” of activity).

229 See supra note 220.

230 Airline Pilots Hearing, supra note 74; Hearings on H.R. 3948, supra note 221; Toward a Full Share of Abundance, supra note 221.

231 See Airline Pilots Hearing, supra note 74, at 47 (testimony of Q. Taylor, Deputy Administrator, FAA).

232 “I would favor replacing the age 60 rule with a system based o n a psycho-physiological age index if I could be satisfied that a proven scientific basis exists and a feasible mechanism could be devised which could replace this rule while providing an equivalent level of safety. From my review of this matter, I am convinced that this capability has not yet been reached.” Id.

233 Id. at 43 (testimony of Dr. S. Mohler). 234 Gerathewohl, Psychophysical Effects of Aging: Developing A Functional Age Index for Pilots: I. Survey of the Pertinent Literature (1977) (prepared by the FAA's Office of Aviation Medicine).

235 Most recently, the FAA has sponsored yet another investigation to parallel the congressionally sponsored NIH effort. See supra notes 98-107 and accompanying text. A pilot union suit to enjoin the study alleged that the FAA was “rigging contract performance so as to predetermine the outcome of a study in favor of retaining the rule,” which in turn would “pervasively influence the NIH study ordered by Congress and … taint further FAA rulemaking efforts in this area. …” Pilots Rights Ass'n, Inc. v. FAA, 86 F.R.D. 174, 177 (1980) (injunction denied because alleged injury was “premature and speculative”).

236 In the Ninety-Sixth Congress, H.R. 3201, 3326, and 4506 sought to extend the retirement age to 65; H.R. 3731, 3948, and 4229 sought a retirement age of 70.

237 Sponsors defended their bills as strategic recognition of “political realities” and a stepping stone to fully abandoning age criteria. Airline Pilots Hearing, supra note 74, at 16.

238 See supra Section IV A.

239 Pub. L. No. 96-171, 93 Stat. 1285 (1979), required “a study of the desirability of mandatory age retirement for certain pilots and for other purposes.” On the NIA Report, see supra notes 98-107 and accompanying text.

240 NIA Report, supra note 92, at 1.

241 Ideally, the interests of safety and the ADEA should be consistent; both should favor the most precise gauge of individual ability. Unfortunately, the safety-conscious agency is undisturbed by over-inclusive retirement. For those under the retirement age, ample and rigorous testing is commonplace. Cf. NIA Report, supra note 92 (discussing testing of pilots required by FAA).

242 Scientific discovery itself is vulnerable to social pressures. Some dedicated and independent scientists dispassionately invoke their muse or intellect, but most scientists respond to public acclaim and funding opportunities. Social desires thus invariably influence scientific conclusions. See generally R. Merton, THE Sociology of Science (1973).

It is a bit unsettling to discuss science in such ignoble terms, yet unavoidable in the context of the retirement issue. Momentum and direction have been supplied by both substantial public interest and generous government funding. Congress has been self-conscious about its sponsorship of scientific discovery. The “ADEA was enacted not only to enforce the law but to provide the facts that would help change attitudes.” Senate Special Comm. on Aging, Improving the Age Discrimination Law—A Working Paper, 93d Cong., 1st Sess., at iii (1973), quoted in EDelman, supra note 32, at 77. Congress established the NIA in 1974 to facilitate “biomedical, social, and behavioral research and training related to the aging process and the diseases and other special problems and needs of the aged.” Research on Aging Act of 1974, 42 U.S.C. § 289k-2 (1976).

243 The policy areas of environmental and health law are replete with such problems. See, e.g., Austern, , Food Standards: The Balance Between Certainty and Innovation, 24 Food Drug Cosm. L.J. 440 (1969)Google Scholar.

244 See supra section IV C.

245 See supra section V A.

246 See Jaffe, , The Effective Limits of the Administrative Process: A Reevaluation, 67 Harv. L. Rev. 1105, 1107 (1954)Google Scholar.

247 See supra section V B. In Anthony Downs’ Inside Bureaucracy (1967), we find a handy dichotomy of political actors—the climbers and the conservers. “Climbers consider power, income, and prestige… . Conservers consider convenience and security… .” Id. at 88. Convenience means “a resistance to changes in behavior that increase personal effort” and security means a “low probability of losses in power, income, prestige, or convenience.” Id. at 84. Conservatism is characterized by a belief that there is “not … much chance of receiving significant gains [and] that negative change would be very bad but positive change would not be very good;” in short, a “bias … against any change in the status quo.” Id. at 97. This appears an apt description of Faa activity.

248 Although Congress has the capacity to act expertly through expanded staffs, its leadership and decisionmaking structure is selected uniquely for political expertness and not technical expertness. The system of congressional decisionmaking makes continual supervision of a policy profoundly difficult since amending legislation is always subject to political distraction and attacks on a fundamental and not simply incremental level. Further, time limitations imposed on the decisionmaking process also reduce opportunity for incremental changes because the congressional agenda, although flexible, is highly competitive. Thus, neither technical expertness nor attentiveness is a functional characteristic of legislative bodies.

249 Congress may have difficulty with this role because of its historical tendency to build consensus through overly-generalized mandates. Cf. McGowan, , Congress, Courts and Control of Delegated Power, 77 COLUM. L. Rev. 1119 (1977)Google Scholar (discussing delegation); Jaffe, , An Essay on Delegation of Legislative Power: I, 47 Colum. L. Rev. 359 (1977)Google Scholar (same); Industrial Union Dep't v. American Petroleum Inst., 448 U.S. 607, 685 (1980) (Rehnquist, J., concurring) (discussing constitutional nondelegation doctrine). Even were Congress to overcome this tendency, the implementation of such socially pervasive goals as the ADEA encompasses would be a painful process to supervise. Cf. R. Nakamura & F. Smallwood, The Politics of Policy Implementation (1981) (discussing difficulties of implementation in a political environment); J. Pressman & A. Wildavsky, Implementation: How Great Expectations in Washington are Dashed in Oakland: Or Why it's Amazing that Federal Programs Work at all, This Being the Saga of the Economic Development Administration as Told by Two Sympathetic Observers Who Seek to Build Morals on Ruined Hopes (1979) (exploring pitfalls of poorly managed implementation); E. Bardach, The Implementation Game: What Happens After a Bill Becomes Law (1977) (suggesting various implementation strategies).

250 See generally Diver, , Policymaking Paradigms in Administrative Law, 95 Harv. L. Rev. 393 (1981)Google Scholar.

251 5See generally J. Freedman, Crisis and Legitimacy—The Administrative Process and American Government 119 (1978).

252 Id. at 120-21.

253 Some have proposed that the Department of Labor assume the task. Comment, supra note 136, 24 Wayne L. Rev. at 1363-64. See also Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224, 248 (5th Cir. 1976) (Brown, J., concurring) (same with respect to bus drivers). Alternatively, the NIH or NIA might be the appointed agency because medical expertise is so crucial to developing alternatives. Practicality concerns could be resolved definitively by Congress.

254 A new agency could adopt a low profile by relying on technology-forcing administration—declaring which job positions will have to abandon age-based retirement over given periods of time according to available medical knowhow. The decision of whether to abandon age-based retirement for each industry or job position could also respond to considerations of both operational and societal costs. In this way, the agency could avoid direct participation in the construction of alternatives, allowing employers flexibility to pursue whatever nondiscriminatory options they wish.

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Age Discrimination in Retirement: In Search of an Alternative

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